Petitioner Cleveland Franklin was trapped in a residential elevator with no telephone. Using his fists, he saved his life by pounding his way out to freedom, and in the process suffered personal injury. He sued for damages against Respondent American Elevators Inspections, Inc, who had certified the elevator as safe. In addition to his own sworn testimony, Mr. Franklin submitted the affidavit of a telephone engineer that the elevator never had a telephone installed because there was no wiring for a telephone, and no cut-out in the wall to house a telephone. A 2-1 majority of the Texas Fourteenth Court of Appeals upheld summary judgment in favor of the Respondents on two grounds. First, that Mr. Franklin's affidavit that he never saw a phone in the elevator was not specific to the date of the elevator inspection. Second, that the lack of wiring or cutout observed by the telephone engineer did not exclude the possibility of a phone sitting on the floor of the elevator and that no witness attested that "telephone wires can only enter an elevator cab through a wall." A dissenting opinion rightly asks, "how could a phone line come through the walls of the elevator without a cut out of some sort?"

Accordingly, the Question Presented is whether to survive a motion for summary judgment, a plaintiff must anticipate and preemptively rebut every possible interference favoring the defendant, no matter how implausible.

Whether a plaintiff must anticipate and preemptively rebut every possible inference favoring the defendant, even if implausible, to survive summary judgment